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Pentagon tries to challenge unwritten code of silence among troops

- The headquarters building for Joint Base Lewis-McChord, south of Tacoma, Wash. The Article 32 preliminary hearing for Sgt. 1st Class Michael Barbera was held on this base in April 2014 Photo by Jim Wilhelm
The headquarters building for Joint Base Lewis-McChord, south of Tacoma, Wash.  The Article 32 preliminary hearing for Sgt. 1st Class Michael Barbera was held on this base in April 2014  Photo by Jim Wilhelm
- The Article 32 preliminary hearing for Sgt. 1st Class Michael Barbera was held in April (23-25 & 28) in a courtroom in this building on the sprawling Joint Base Lewis-McChord south of Tacoma, Wash. PHOTO by Jim Wilhelm
The Article 32 preliminary hearing for Sgt. 1st Class Michael Barbera was held in April (23-25 & 28) in a courtroom in this building on the sprawling Joint Base Lewis-McChord south of Tacoma, Wash. PHOTO by Jim Wilhelm
Submitted - Eugene R. Fidell, an attorney who teaches military law at Yale University Law School and a member of the Defense Legal Policy Board, a federal committee which gives advice to the Secretarty of Defense. He was also a member of the policy board subcommittee that reviewed the issue of injuries or deaths to civilian non-combatants in Iraq and Afghanistan and made findings and recommendations in a report issued in May 2013 on possible changes to the Uniform Code of Military Justice system for dealing with such deaths. Fidell also runs a blog site and is an outspoken proponent of the need for changes in the military justice system.
<div style='float:right;width:100%;' align='right'><em>Submitted</em></div>Eugene R. Fidell, an attorney who teaches military law at Yale University Law School and a member of the Defense Legal Policy Board, a federal committee which gives advice to the Secretarty of Defense.  He was also a member of the policy board subcommittee that reviewed the issue of injuries or deaths to civilian non-combatants in Iraq and Afghanistan and made findings and recommendations in a report issued in May 2013 on possible changes to the Uniform Code of Military Justice system for dealing with such deaths.  Fidell also runs a blog site and is an outspoken proponent of the need for changes in the military justice system.
Submitted - Retired Air Force Col. Morris 'Moe' Davis was a 25-year veteran of the Judge Advocate's Corps and chief prosecutor of the joint military commissions at Guantanamo from September 2005 until he resigned in October 2007. He was director of the entire Air Force judiciary system until October 2008, when he retired. Morris stated at the time that he quit the Guantanamo chief prosecutor post over alleged Pentagon meddling in cases and because his superiors overruled his policy that he did not consider admissible in the commissions any evidence obtained through waterboarding because it was torture.
<div style='float:right;width:100%;' align='right'><em>Submitted</em></div>Retired Air Force Col. Morris 'Moe' Davis was a 25-year veteran of the Judge Advocate's Corps and chief prosecutor of the joint military commissions at Guantanamo from September 2005 until he resigned in October 2007.  He was director of the entire Air Force judiciary system until October 2008, when he retired.  Morris stated at the time that he quit the Guantanamo chief prosecutor post over alleged Pentagon meddling in cases and because his superiors overruled his policy that he did not consider admissible in the commissions any evidence obtained through waterboarding because it was torture.

Civilian casualties

A Defense Legal Policy Board subcommittee recommended changes to the Uniform Code of Military Justice in dealing with cases involving service members accused of causing death, injury or abuse of noncombatants in combat zones. Among the findings:

• More training and retraining for troops and commanders on the need for prompt reporting and investigation of such allegations. Require that civilian military contractors be trained and brought under mandatory reporting rules.

• Joint commanders should decide whether to conduct hearings for possible code violations, rather than leave that decision with each branch. To support the joint commander, station more criminal investigators and Judge Advocate's Corps lawyers with operational commands in action. Forensics personnel should be made available in-country, versus having them come from the United States and then conducting testing that takes months.

• Improve communications with locals about what the military is doing with alleged cases of abuse, injury or deaths of civilians. Improve communications with family members of service members involved, so they understand the process.

• Consider streamlining the process by handling situations involving groups of soldiers together. Critics say this recommendation potentially violates a soldier's constitutional right to due process to have an individual trial.

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Monday, May 5, 2014, 10:57 p.m.
 

Three months before then-Army Staff Sgt. Michael Barbera was accused of fatally shooting two unarmed and deaf Iraqi boys in March 2007, a survey found that just 55 percent of soldiers and 40 percent of Marines in Iraq would report a unit member to superiors for injuring or killing an innocent noncombatant.

Given those percentages, experts familiar with the Barbera case and military justice say they aren't surprised that six surviving members of his eight-man Small-Kill Team, who testified at his Article 32 preliminary hearing last month, did not report the brothers' killings to commanders with the 5-73rd Cavalry, 82nd Airborne.

Most team members testified during the hearing at Joint Base Lewis-McChord near Tacoma, Wash., that they feared breaking rank, hurting their military careers or getting retaliation.

“I think there is a natural tendency among soldiers to band together and not be viewed as a malcontent,” said retired Air Force Col. Morris “Moe” Davis, an officer with the Judge Advocate's Corps for 25 years and former director of the Air Force legal system. “It's inherent in the culture.”

Eugene R. Fidell, who teaches military law at Yale University Law School, agreed.

“In any (military) system, to have essentially 50 percent of the people involved say killing of civilians will not be reported is totally unacceptable,” he said.

For commanders who try to do the right thing, “reporting bad news is not a career enhancer, either,” Davis said.

He should know. Davis was chief prosecutor of the joint military commissions at Guantanamo Bay, Cuba, from September 2005 until he resigned in October 2007. He said he quit the post because of alleged Pentagon meddling in cases and because superiors overruled his policy not to consider evidence obtained through waterboarding. After Guantanamo, Davis was director of the Air Force judiciary system for a year before retiring in October 2008.

In spring 2009, then-Sgt. Ken Katter became the first to tell authorities about the alleged Barbera killings. He waited until he was in the States and about to medically retire with combat wounds.

Three team members joined him in telling Army criminal investigators. They testified they saw Barbera shoot the boys while they tended cattle. A former medic and a fifth team member testified they heard Barbera fire but did not know what he shot.

No one conducted battlefield damage assessment, on Barbera's instructions, to determine whether Ahmad Khalid al-Timmimi, 15, or his brother Abbas, 14, had weapons or intelligence, according to testimony.

About the time that officials reconsidered charges for Barbera last year, a subcommittee of the Defense Legal Policy Board issued a 271-page report on military justice involving service members accused of causing the death, injury or abuse of noncombatants in Iraq or Afghanistan. The board prepared the report in its role as a committee advising the secretary of Defense.

Though the report did not pass judgment on particular cases, the subcommittee reviewed instances of alleged misconduct that caused civilian casualties.

“Evidence exists that service members at the point of contact, or their leaders, have been reluctant to inform the command of reportable incidents,” the subcommittee found. “This reluctance may be attributed to any number of potential factors, including a feeling of justification in connection with the actions taken, fear of career repercussions, loyalty to fellow service members or the unit, or ignorance.”

The report recommends changes in the military justice system's handling of reporting and adjudicating civilian killings, injuries and abuses.

Fidell, a member of the subcommittee, said he does not believe the Army has acted on most of the recommended changes because it is receiving information from similar studies.

Fidell told the Tribune-Review that Congress' focus recently on sex assault cases has hindered overall reforms needed in the military justice system. He said the Defense Department's former “don't ask, don't tell” policy involving gay troops recognized the kind of cohesion in the ranks that contributes to nonreporting of civilian injuries or deaths.

Fidell said the Barbera case is important because it “goes to the overall military justice operation. Secondly, and this is just as important, some people died.”

The hearing officer, Lt. Col. Charles Floyd, will recommend in several weeks whether to proceed to court-martial with two counts of premeditated murder and two counts of prejudicial conduct against Barbera, or modify, dismiss or handle the charges another way.

Jim Wilhelm is Trib Total Media's investigations editor. He can be reached at 412-320-7894 or jwilhelm@tribweb.com.

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